June 1991 - San Francisco Police Officers Association

June, 1991 Notebook Page 15OTPOST 456in 1988, 20 years after his tour in Vietnamwith the Marine Corps.(Continued From Page 1)(Continued From Page 2)if compensation is proper. Three importantfacts the Courts generally look at are thefrequency of the call-backs, the duration ofthe call-backs, and whether the employeeis subject to discipline for late or missedcalls.Employees who are required to wearbeepers during their off duty hours mayalso be entitled to FLSA overtime compensation.The fact that the employee carriesa beeper does not in and of itself invokethe overtime provisions. Federal regulationsstate that if an employee is merely requiredto leave word as to where he or shecan be reached on-call time is not compensable,(29 CFR § 785.17). Thus, in manycircumstances a beeper solves theemployer's concerns about paying for theemployees' on-call time. However, if bylooking at the facts of the situation it canbe determined that the employee's time isso circumscribed that it can no longer bedeemed his or her own, the employeeshould be compensated regardless of thefact that a beeper is worn. The followingcases help illustrate the factual analysisthat goes into a Court's determination ofwhether compensation for on-call time isproper.The facts of Brock u. El Paso NaturalGas Co., 28 WHC 629 (5th Cir. 1987), ledthe Fifth Circuit Court of Appeals to findthat no overtime compensation was due fortime not actually spent working becauseemployees had sufficient discretion overtheir on-call time. The employees of ElPaso Natural Gas Co. were required to beon-call in rotating shifts, were given widelatitude to determine who would be on-call,were able to send for a backup if they wereunable to fulfill their on-call duties and werepaid for the period they were waiting forthe backup to arrive, and were able tospend the on-call time with their familiesin the manner they choose so long as theemployee remain within hailing distance ofthe station and the alarm which soundswithin the on-call employee's residence.The case of Bright v. Houston NorthwestMedical Center, 29 WHC 905 (5thCir. 1989), provides an example of the typeof circumstances which lead a Court tobelieve compensation for on-call time maybe proper. Upon denial of defendant's summaryjudgment motion, the Court foundthat a hospital employee who was requiredto be on-call 24 hours per day, 365 daysper year, who was required at all times tobe able to return to the hospital within 20minutes, and who had no backup personfor relief, was not as a matter of law usinghis on-call time predominantly for his ownpurposes. The Court stated that the issueof compensation for the employee's on-calltime was to be determined at trial and noton summary judgment.In Renfero v. Emporia, 29 WI-IC 1049(DC Kansas 1989), firefighter's on-call timewas determined to be so circumscribed asto effectively restrict the employees fromusing the time for their own pursuits, andthus, was compensable under the FLSA.In this case the firefighters were subject tomandatory rotating 24 hour on-call duty.rr cht ZTtIraxb !LTThe on-call firefighter was called to dutywhen the regular duty staff fell belowminimum staffing levels and when aminimally staffed unit was called out.Following the return of regular staff the oncallemployee was relieved from duty. Oncallemployees were actually called in towork on an average of 4 to 5 times per shift(and up to as many as 13 call-backs pershift) via their pagers and were on call foran average of one hour per call-back. Whileon-call shift trades were possible, they weredifficult to accomplish, and while not requiredto remain at the fire station, thefirefighter was required to be able to resondwithin twenty minutes of the call. A writtenreprimand was given to all firefighterswho did not respond within the requiredtime and this reprimand was taken into accountin determining performance evaluations,discipline, and termination. Thefirefighters were restricted from obtainingsecondary jobs, from traveling beyond theirpager range, and further than twentyminutes from the station. They hiredbabysitters for their on-call days and werehesitant in partaking in activities which requiredexpenditure of money as they werelikely to be called in.Officers are entitled tocompensatory time off at time andone half.Compensatory time off for overtime islikewise subject to the same principles andguidelines of Garcia and the FLSA overtimeprovisions. An officer who performsmandatory rotating rebooking duty whichrequires overtime work for any given payperiod is to be compensated for this overtimeat time and one half. The fact that thisduty is compensated for in time off ratherthan in pay is of no consequence.Conclusion.While overtime pay is applicable to stateand local government employees under theFLSA, in the case of pay for on-call duty,a case-by-case determination must bemade. The threshold test is the degree offreedom the employee experiences duringon-call duty, yet there are important factswhich seem to distinguish one case fromanother. If the employee is frequentlycalled-in, spends a signifcant amount oftime during each call, has little or no flexibilityin scheduling on-call duty, or is subjectto some form of reprimand or punishmentfor late or missed calls, the Courtsseem to be inclined to grant compensationfor the employee's time.The FLSA principles for overtime payapply equally to compensatory time off inlieu of pay and time off is to be given atJime and one half.TheMatterhornrteoSwissRestaurantfor reservations call(415) 885-6116•2323 Van Ness AvenueSan Francisco, CA 94109Bay Terminal, Main and Mission Streets.Please get the word out to any homelessveterans you run across. If you would likea flier to post at any appropriate spot contactme at Northern Station (553-1563).To volunteer, support, and/or to donateservices or supplies, or for further information,please contact Dan Silva, Swords toPlowshares, 400 Valencia St., San Francisco94103 (415) 552-8804. Twenty ortwenty-five years ago, over in the Nam, wewould have died before turning our backson our comrades and leaving them behind.Some of those very same comrades needour help more now than they ever did overin the Nam. Plase don't turn your backs onthem and leave them behind now, whenthey need us the most. Thank you.To this day I have not watched a VietnamWar movie. I had always believed thatI never would. Last week however, JoelHarms pointed out a blurb which was inthe San Francisco Chronicle. It stated,"Robert Loggia and David Caradine havebeen cast to co-star in '1St Force,' a moviebased on a true story of the victories andhardships of an elite Marine outfit that wentbehind enemy lines during the VietnamWar." That could only be the First ForceReconaissance Company. I served with 1stForce in Vietnam in 1968 and early 1969.I guess I'll have to see it. Force Recon Companyseems to have been the least publicizedelite unit in history. It's about time theygot some well-deserved recognition. I urgeeveryone to see the movie when it comesout.I would like to close this month's columnwith a poem for the benefit of those of youthat might be less than sympathetic to theplight of our homeless veterans. It was writtenby Sgt. J.L, Murphy, Huntsville, AL,S-2 Scout 3/3. It is used in the Post-Traumatic Stress Disorder program inTuscaloosa VA Medical Center, where heis a patient. Sgt. Murphy wrote the poemEARLY CALIFORNIAArtistic Iron WorksELECTRICAL, GALVANIZED, ETC.• ELECTRICAL GATES STORE FRONTSGALVANIZED IRON BALCONIES•WINDOW GRILLES SPIRO STAIRWAYS•HAND RAILINGSV. ALDAZBusiness Owner1877 Oakdale Ave., San Francisco CA 94124Call 647-1254PETcetera.PET FOODS & SUPPLIES2226 TARAVAL STREETAT 32nd AVE. NEXT TO THE 7- 11HOURS: MONDAY - FRIDAY 10-7SATURDAYS 9:30 - 6:30SUNDAY 12:00 - 5:00(415) 661-4236'NamHe talks about the heat,He still recalls the rain.He speaks of the smell of death,The blood, the mud, the pain.He talks about the trails,He still recalls the sky.He speaks of screamin' arty rounds,As ghosts walk through his mind.He still remembers daysWhen no one had to die.He speaks of diggin' holes,Then leaving them behind.There's ambush on his face,Tracers in his night.Concussion in the wind,Sorrow in his smile.And it's been a long time comin'A fight tooth and nail.To leave behind those lost soulsAnd climb from the pit of hell.But he's closer to the truthThan anyone should be.After all these years of fighting,Now the enemy is me....NICKIE'S460 HAIGHTSAN FRANCISCO621-6508.1 ESp40C, (P9.Iii II4IJ1010 am2601 MISSION STREETSAN FRANCISCO,CA 94110415/695-1010530 Haight Street At FillmoreSan Francisco, CA 94117(415) 626-72791.Steve SparksRE, O'HAIR&CO.A DIVISION OFWESTBURNE SUPPLY, INC.945 BRYANT STREETSAN FRANCISCO, CA 94103(415) 431-4280Arv;^;I F.The Black RoseCocktail Lounge335 Jones StreetSan Francisco441-3585